Fox Reporter Faces Potential Jail In Protection Of Her Sources

jana-winterPrisonCellA classic confrontation is occurring in Arizona over the freedom of the press. reporter Jana Winter is standing by fundamental principles of journalism in refusing to disclose who gave her a notebook that a judge had put under a protective order in the case of Colorado shooter James Holmes. Arapahoe County District Judge Carlos Samour is pursuing other avenues for the time being in trying to find out who leaked the notebook, but Winter could still be put on the bench and held in contempt for a failure to disclose her source.

James Holmes sent the notebook to his psychiatrist before he allegedly killed 12 movie theatergoers.

Earlier Arapahoe County Judge William Sylvester denied the motion of the New York-based reporter to postpone her appearance pending her appeal in a New York appellate court to quash the subpoena for her to testify in Colorado.

Holmes’ team is trying to learn who leaked the notebook. However, Colorado does have a shield law as does New York. I have previously testified in Congress on the need for such law, particularly in the federal system, to protect basic press freedoms. For a prior column, click here and for former testimony, here.

Winter and Fox are standing firm on journalistic principles in protecting the source of the information. Colorado law (below) offers a qualified immunity for journalists that would seem to cover this circumstance. Winter’s story cited unnamed law enforcement sources on the content of the notebook.

Winter’s source could still face disclosure from the ongoing investigation but there should be no effort to jail Winter for protecting journalistic confidentiality and sources. Hopefully, the judge will reconsider efforts to coerce her testimony by giving her the choice of maintaining journalistic principles and losing her freedom with a jail stint. This is precisely why we have such laws and reporters have shown a long and proud tradition in this country of protecting sources even in the face of their own incarceration.

Here is the Colorado Shield Law:

The Colorado Press Shield Law, C.R.S. § 13-90-119 states as follows:
(1) As used in this section, unless the context otherwise requires:
(a) “Mass medium” means any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.
(b) “News information” means any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, regardless of whether such items have been provided to or obtained by such newsperson in confidence.
(c) “Newsperson” means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.
(d) “Press conference” means any meeting or event called for the purpose of issuing a public statement to members of the mass media, and to which members of the mass media are invited in advance.
(e) “Proceeding” means any civil or criminal investigation, discovery procedure, hearing, trial, or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado. Such term shall not include any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of the general assembly.
(f) “Source” means any person from whom or any means by or through which news information is received or procured by a newsperson, while engaged as such, regardless of whether such newsperson was requested to hold confidential the identity of such person or means.
(2) Notwithstanding any other provision of law to the contrary and except as provided in subsection (3) of this section, no newsperson shall, without such newsperson’s express consent, be compelled to disclose, be examined concerning refusal to disclose, be subjected to any legal presumption of any kind, or be cited, held in contempt, punished, or subjected to any sanction in any judicial proceedings for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:
(a) News information received at a press conference;
(b) News information which has actually been published or broadcast through a medium of mass communication;
(c) News information based on a newsperson’s personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means;
(d) News information based on a newsperson’s personal observation of the commission of a class 1, 2, or 3 felony.
(3) Notwithstanding the privilege of nondisclosure granted in subsection (2) of this section, any party to a proceeding who is otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing by a preponderance of the evidence, in opposition to a newsperson’s motion to quash such subpoena:
(a) That the news information is directly relevant to a substantial issue involved in the proceeding;
(b) That the news information cannot be obtained by any other reasonable means; and
(c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.
(4) The privilege of nondisclosure established by subsection (2) of this section may be waived only by the voluntary testimony or disclosure of a newsperson that directly addresses the news information or identifies the source of such news information sought. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information.
(5) In any trial to a jury in an action in which a newsperson is a party as a result of such person’s activities as a newsperson and in which the newsperson has invoked the privilege created by subsection (2) of this section, the jury shall be neither informed nor allowed to learn that such newsperson invoked such privilege or has thereby declined to disclose any news information.
(6) Nothing in this section shall preclude the issuance of a search warrant in compliance with the federal “Privacy Protection Act of 1980”, 42 U.S.C. sec. 2000aa.

Source: Fox

30 thoughts on “Fox Reporter Faces Potential Jail In Protection Of Her Sources”

  1. BarkinDog: It is not Yeast Day. It is Easter Day. The Bunny comes in the morning. Then ya go to church. Then its Easter Brunch at Walmart. Then its Aunt DoeDoes for early dinner. Yeast had nothing to do with Christ rising from the dead. He was getting up early to watch out for the Easter Bunny and fled north when all the grandkids showed up with baskets. He was Christ’s second cousin twice removed, and he looked like Jesus. Nobody started calling him HeyZeus until he hit the Mexican border.

  2. Maybe She is a Communist. After that whiny voice little itchBay the other night who called Cesar Chavez a Communist when Google put his photo up on the screen for his 86th Birthday. Some Jesus lovers were made because it was Easter and it competed with Christ’s Rising From the Dead on Yeast Day. Then Fox was debating whether Google was Communist. Does she talk like a child when on the air? Is she a closet Nazi? Do Koch Brothers snort coke? Why does a Brit own Fox News? If I Google something will Google lead me to left wing dicta?

  3. What Blouise said. This reporter should be protected from having to disclose her source, period.

  4. wow, never thought i’d see the words “” and “fundamental principles of journalism” used in the same sentence.

  5. I do not know the name of the itchBay who was a commentor on Fox last night, who called Cesar Chavez a Communist. But this is beyond the Palin. Or beyond the Paletinate. McCarthyism at its finest. Some commenter above referred to Fox bashers as bigots. That is an odd configuration of speech.

  6. Paul, you possibly reversed two words.

    I am anti, bigot fox.
    Definition of BIGOT: a person who is obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance

    Near Antonyms
    freethinker, latitudinarian, liberal

    I am disgusted with most of the entire fawning media. Each network caters to the simplistic. They report news using addition and subtraction theory.
    Republican mashed potato soundbites, versus Democratic pea soup sound bites. The American public is fed juvenile partisan opinions, and then we are treated to opposing politicians having a grammar school food fight //
    Mashed potatoes V Pea soup.

    The real culprits here are the Politicians. They purposefully use the media this way. The media purposefully promote these banal positions and let the sparks fly.
    Viewership is what determines the nature of reporting. Bread and circuses create viewers. Substance and complexity cause channels to be changed.

    Simple news is simple math. Complex news is algebra, geometry, calculus.
    I put effort into watching Chris Hayes, Bill Moyers, and Rachel Maddow.
    IMO it takes brain effort to follow them, I have to pay attention, weigh & balance.concepts, ruminate, and spark a few neurons to learn and increase my understanding of whatever topics they are illuminating.
    C-span on the weekends have in depth interviews with Pols and Authors. It is amazing how much illuminating information is shared on many of these programs.

    A busy self involved apathetic public wants 10 second sound bites. They want sound bites that support their busy self involved apathetic lives.
    Sound bites they are comfortable with and satisfies their lower math thinking skills.

    All the major networks do this. IMO fox is the leader.
    They lead in appealling to the basest of emotion, lead in not reporting valid counter arguments, lead in creating false narratives. And they lead in spending time denigrating and belittling the POTUS. Obama got Bin Laden and it only took two days for fox to start criticizing him. Benghazi, ACA, Obstruction, ETC.

    All network journalism principles mostly suck.
    My opinion is that Fox is the Suckiest.

  7. BettyKath,

    Bravo! The way i see it until your comment at #17, I think everyone was missing the boat railing for or against Fox News. Not an issue in my view.

    The source was, law enforcement. The court had ordered the journal sealed. Someone from the prosecutor’s office or the cop shop, with malice, elected to relase to a journalist protected material. Whether the prosecutor or a cop or the pair in collaboration doesn’t much matter. Once again the people who are supposed to be riding the white horses are flagrantly and maliciously sh*ti#ng on judicial authority.

    Identify all that had access to the journal. Haul them into court. Swear them on oath and let them all deny that they were the culprit. One or more will have committed perjury. Eventually the truth will out as facts are stubborn things. Once the culprit is/are identified, fire then prosecute then harshly sentence the miscreant. This seems a much more reasonable approach than jeopardizing the 1st Amendment by trying to jail a journalist for contempt because she honorably protects her source, no matter how stinking dirty her “law enforcement” source is.

    I suspect the court entered the order sealing the journal to protect the defendant’s due process right to a fair trial. Law enforcement seemingly had a problem with that order. Then took it upon themselves to decide that there isn’t any real obligation of law enforcement to abide a lawful court order. Unfortunately I share BettyKaths cynical view that LEO will ever successfully investigate themselves. I appreciate her sarcasm on that note.

    The defense offered pleas of guilty for life sentences. The prosecutor rejected the offer and is insisting that this mentally ill psycho be killed. I suspect that the defense would willingly ascede to an indetermninate continuance. The court should grant it. As long as there is no trial there will be no possibility of an execution. The court can provide the prosecutor and/or the cop shop with the ability to purge the contempt. Just come forward and confess the identity of those that made the disclosure and the court will forthwith calendar the case of; People of Colorado v. James Holmes for trial.

    Chance of this remedy for violation of the court order, about the same as Hell freezing over.

  8. “When you know that you’re being watched by the government, and they are assuming you are a criminal … the ringleader of the disclosure to the New York Times regarding the secret surveillance program … life gets darker and darker.” -Thomas Drake

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